Thirty-One Lawsuits Filed Over Contraception Mandate

Multiple states and other plaintiffs are continuing their lawsuits against President Obama’s administration over his mandate that employers provide coverage for contraception and abortifacients, despite being rebuffed by a federal judge.

Seven states, three organizations, and two individuals are continuing their fight against the contraceptive mandate in the federal health care law, bringing their lawsuit to the Eighth U.S. Circuit Court of Appeals despite a Nebraska judge’s ruling that the plaintiffs were unable to prove the contraceptive mandate was an “immediate threat.”

The states of Texas, Nebraska, South Carolina, Michigan, Florida, Ohio, and Oklahoma joined in a lawsuit with Catholic Social Services, Pius X High School, the Catholic Mutual Relief Society of America, Stacy Molai, and Sr. Mary Catherine to contest the contraceptive mandate, arguing it violates the First Amendment’s protection of religious freedom.

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, a key organization backing the lawsuits, said organizations continue to add themselves to the list of plaintiffs. Recent additions include non-Catholic institutionsHouston Baptist University and East Texas Baptist University.

Duncan says there are currently 31 cases, including more than 80 plaintiffs, fighting the contraception mandate in the courts.

No ‘Immediate Harm’

In July District Court Judge Warren Urbom dismissed the most prominent case brought by the seven states, claiming the federal government’s announcement that enforcement of the mandate would not begin until August 2013 meant the case was premature

"The plaintiffs face no direct and immediate harm, and one can only speculate whether the plaintiffs will ever feel any effects from the rule.… This case clearly involves 'contingent future events that may not occur as anticipated, or indeed may not occur at all,' ... and therefore it is not ripe for review,” Urbom wrote in his decision.

Additionally, Urbom ruled the plaintiffs do not have legal grounds to file suit because First Amendment rights protect the religious beliefs of individuals, not entire businesses or states.

“None of the plaintiffs have established that they have standing to challenge the rule, and even if I were to assume that they did have standing, their claims are not ripe," Urbom said.

Nebraska Attorney General Jon Bruning disagreed.

“Today’s decision completely disregards the federal government’s continued shell game when it comes to this rule. Essentially, this decision asks millions of Americans to watch and wait for their religious liberties to be violated. Obviously, we’re disappointed with the ruling, and we will consult with our co-plaintiffs to assess our next steps,” he said in response to the ruling.

Delaying Tactic

According to Texas Attorney General Greg Abbott, he and his co-plaintiffs chose to continue fighting the mandate despite the dismissal “to preserve and protect the religious freedoms enshrined in our Constitution.”

“The Obama administration is trampling on religious liberty and violating the U.S. Constitution by forcing private citizens and faith-based organizations to purchase health insurance coverage that conflicts with their religious beliefs,” Abbott said.

Michigan Attorney General Bill Schuette argues he does have grounds to continue the suit as he represents the rights of Michigan residents.

“Any rule, regulation, or law that forces faith-based institutions to provide services that violate their free exercise of religion is a flat-out violation of the First Amendment,” Schuette said.

Liberty Question Unresolved

Duncan says the federal government’s tactic has been to seek dismissals “on purely technical grounds,” leaving “unresolved the question of religious liberty at the heart of the lawsuit.”

Duncan acknowledges that proving an immediate threat to states, organizations, and individuals attached to the lawsuit may be more difficult until closer to the enforcement date in 2013. But he emphasizes that the states and other plaintiffs on the primary lawsuit are determined to push ahead despite the initial ruling.

“Under the mandate, nearly every Catholic hospital, charity, university, and diocese in the United States—along with millions of institutions of other faiths—must refer for, must pay for, and must act as a vehicle for contraception, sterilization, and abortion-inducing drugs. If they do not, they face millions [of dollars] in fines,” Duncan said.